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In re Stalder

Court of Appeals of Texas, First District

January 9, 2018

IN RE BARBARA J. STALDER, Relator

         Original Proceeding on Petition for Writ of Mandamus

          consists of Justices Jennings, Massengale, and Caughey.

          OPINION

          Michael Massengale Justice

         Relator Barbara J. Stalder has filed a petition for writ of mandamus, asking that we order the chair of the Harris County Democratic Party to place her on the 2018 Democratic Party primary ballot for the office of judge of the 280th Judicial District Court.[1] Despite the fact that Stalder's application included enough signatures to qualify as a petition in lieu of the filing fee under Chapter 172 of the Election Code, this dispute requires us to decide whether she is ineligible to seek that office because her check to pay the filing fee was returned for insufficient funds. We conclude that the Election Code permits a candidate to apply for a place on the ballot by either or both of two methods: by paying a filing fee and filing a petition with the required number of signatures, or by filing a petition in lieu of the filing fee, or both. Further, the party chair is not required to reject an application due to a bounced filing-fee check when the application otherwise satisfies the statutory requirement for a petition in lieu of the filing fee. Therefore the party chair had a ministerial duty to accept Stalder's application, and we conditionally grant relief.

         I

         The facts are essentially undisputed. Barbara J. Stalder filed an application to be placed on the Democratic Party general primary ballot in Harris County for the office of judge of the 280th District Court.[2] She used the application form promulgated by the Secretary of State.[3]

          As part of her ballot application, Stalder enclosed 124 pages containing over 900 petition signatures of registered voters.[4] Stalder used the petition form promulgated by the Secretary of State, titled "Petition in Lieu of a Filing Fee and/or Petition for Judicial Office (for use in a primary election)."[5] In "an abundance of caution" and to ensure that her application "would meet the requirements of the Texas Election Code, " she also submitted a personal check for $2, 500, with the words "filing fee" handwritten on the check.

         Prior to the filing deadline, Stalder's bank returned her check for insufficient funds. But the Harris County Democratic Party did not receive notice of the bounced check until two days after the filing deadline, at which time Stalder could not cure the deficiency with a substitute method of payment.[6]

          The party's general counsel sought advice from the Secretary of State's Elections Division.[7] In an email, the party's lawyer acknowledged: "Ordinarily, the fact that a check tendered in payment of a filing fee required by the Texas Election Code was returned for insufficient funds after expiration of the filing period would be fatal to a candidate's right to be listed on the ballot." However, the lawyer also noted that "the check was tendered as a fallback, in case it was found there were insufficient valid signatures on the Petition to permit the Application to be accepted without the payment of a filing fee." The party's general counsel concluded that Stalder satisfied the filing requirements by filing an application with petitions containing more than 750 signatures, [8] and therefore she was not required to pay a filing fee.

          The director of the Elections Division initially responded by email to indicate his agreement with the general counsel's analysis. But shortly thereafter the director sent another email to advise that the Elections Division's legal staff concluded otherwise, stating: "The candidate filed with a fee and can't rely on the signatures as an insurance policy." In further email correspondence, the legal staff explained this conclusion:

The short answer is that we have told candidates that they don't get to give an "insurance check" to be held in reserve in case the petition fails. It is not fair to the people who need the petition because they don't have as much money as other candidates. This unfairness is also contrary to the case law that is the basis for the petition in lieu of filing fee, the purpose of which is to give people with less money an option that will put them on an equal footing.
You ask if the check was irrelevant. On these facts, we think the candidate filed with a filing fee that later failed. . . .
. . . .
In sum, we think the Election Code provides that the candidate must choose one method or the other, and that one method cannot be used as a "backup" or insurance for the other.

         Acting on this advice, the party chair informed Stalder that she had "no alternative" and declared her "ineligible to be a candidate on the 2018 Democratic Party General Primary Ballot."[9]

          Stalder requested that her application be accepted despite the lack of a filing fee, based on the fact that she obtained 750 signatures of registered Harris County voters. The party denied her request.

         II

         Stalder contends that the Harris County Democratic Party Chair had a statutory duty to certify her name for the primary ballot because she submitted an application that complied with the Election Code. The party chair frames the issues as whether she had a ministerial duty to treat Stalder's application as a petition in lieu of the filing fee, and whether the bounced check required her to reject the application. No party to this proceeding disputes that Stalder's application and petitions are sufficient if her application is accepted based upon "a petition in lieu of the filing fee" rather than her ineffective attempt to pay the filing fee.[10] Thus, we must interpret the Election Code to decide whether an applicant's submission of a bad check in attempted payment of the filing fee precludes the application from also being considered as a petition in lieu of the filing fee.

         It is this court's duty and obligation to exercise the judicial power by applying the law to resolve this dispute, [11] and when a statute is unambiguous we owe no deference to the Secretary of State's informal guidance provided to party officials interpreting it.[12] A writ of mandamus will issue to compel an officer of a political party to perform a ministerial act.[13] "An act is ministerial when the law clearly spells out the duty ...


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